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6 May 2010

Justifying Targeted Killings

War on Terror boardgame, courtesty of cokaigne/flickr
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War on Terror boardgame

The Obama administration has attempted a complete legal justification for targeted killings in Afghanistan, Pakistan and Yemen. It isn’t quite hitting the mark, Peter A Buxbaum writes for ISN Security Watch.

By Peter A Buxbaum in Washington, DC for ISN

When George W Bush announced his pursuit of a global war on terror, he asserted the right as commander-in-chief of the United States armed forces to target and detain anyone, anywhere he deemed to be a threat to the US. This included US citizens on US soil.

The inauguration of Barack Obama heralded the end of Bush's repudiation of international law, in words if not in deeds. When Obama accepted the Nobel peace prize in Oslo last December, he declared that "we have a moral and strategic interest in binding ourselves to certain rules of conduct. Even as we confront a vicious adversary that abides by no rules, the United States of America must remain a standard bearer in the conduct of war."

So much for Obama's words; what of his actions? Obama has continued and escalated Bush's war in Afghanistan and has continued and expanded his predecessor's policies of targeting leaders of al-Qaida and the Taliban with air strikes, not only in Afghanistan, but also in Pakistan and Yemen.

Are these targeted killings protected under the umbrella of international law?

Harold Koh, legal adviser to the US Department of State valiantly defended the legality of Obama's policies and actions at a speech in Washington in March. But it is debatable whether his analysis provided a full legal justification for Obama's policies and activities.

"The Obama administration is firmly committed to complying with all applicable law, including the laws of war, in all aspects of these ongoing armed conflicts," Koh declared.

Koh's use of the term "armed conflict" is instructive; he repeated that phrase 16 times. This would suggest that Koh is relying on the law of war and that the Obama administration considers its adversaries in Afghanistan and Iraq armed belligerents, much as it would an armed force representing a nation state.

"As recent events have shown, al-Qaida has not abandoned its intent to attack the United States, and indeed continues to attack us," Koh said. "Thus, in this ongoing armed conflict, the United States has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level al-Qaida leaders who are planning attacks."

Legal paradigms

In general, there are two international legal paradigms that can be used to justify targeted killings: the law of war and the principle of self-defense.

"These issues arise with respect to the attacks in Pakistan," William Banks, a professor of law and director of the Institute for National Security and Counterterrorism at Syracuse University in New York, told ISN Security Watch. "Is it an armed conflict that is going on? If so, the legal restrictions and controls of the law of war apply. If not, you have to look to another source of law. The backup position would be the principle of self defense in international law."

Koh indicated that the administration's targeting operations are conducted consistently with law of war principles, including the principle of distinction, which requires that attacks be limited to military objectives; and the principle of proportionality, which prohibits attacks that would cause excessive collateral damage.

The reliance on the law of war and the characterization of al-Qaida and the Taliban as belligerents means that the US could arguably apply lethal force to anyone in the command and control structure of those organizations.

But could anyone affiliated with a terrorist organization anywhere in the world fall under that category? When the US Congress authorized the use of force in 2001, in the aftermath of 9/11, it was directed at those who planned or executed the terrorist attacks.

That means that targeted killings could be justified under the law of war only for those "active in the zone of hostilities," according to Kate Martin, director of the Center for National Security Studies, a Washington-based civil liberties advocacy and research organization.

Although the conflict is centered in Afghanistan, Martin believes the administration could defend air attacks on al-Qaida and Taliban leaders in Pakistan on the grounds that enemy belligerents flow back and forth across the porous border the two countries share. But attacks in Yemen, or elsewhere, may be too far from the battlefield to pass muster under the law of war, she told ISN Security Watch.

If the law of war does not apply to attacks outside Afghanistan and Pakistan, then the administration would have to reply on the principle of self-defense under international law. Under that theory, "the US can impose lethal force against those posing an imminent threat to the United States, where alternative means of interdiction are not possible," said Banks.

Targeted attacks in Yemen would meet these criteria, according to Banks, provided the president finds imminent threat.

Battlefield boundaries

Koh, while relying primarily on the law of war, also hinted that the administration relies on the principle of self-defense. "We continue to fight a war of self-defense against an enemy that attacked us on September 11, 2001...," he said. "...The United States...may use force consistent with its inherent right to self-defense under international law."

These references raise some troubling issues for Kate Martin. "Since Bush took the position that he could use lethal force against anyone, anywhere, including the US," she said, "we need an explanation from the Obama administration why using lethal force against someone in Yemen is different than the Bush administration claim.

"Under the law of war it is not sufficient for the president to determine that an individual poses an imminent threat to national security," Martin added. "It has to be tied to the armed conflict with al- Qaida."

If the Obama administration is relying on a theory of self-defense, Martin believes it would be required, or at least wise, to receive Congressional authorization to expand the scope of the conflict beyond the "enemy that attacked us on September 11, 2001." "We don't know, in the context of self-defense, as opposed to the armed conflict in Afghanistan, what the administration's view is of its own authority," said Martin. "Koh appears to reserve room for self-defense but provides no insight into it."

Banks agreed that "Koh had a foot in both camps." As far the administration elucidating a coherent legal theory for its wartime policies and actions, Banks believes that there will be "more to follow."


Peter Buxbaum, a New York- and Washington-based independent journalist, has been writing about defense, security, business and technology for nearly 20 years. His work has appeared in publications such as Fortune, Forbes, Chief Executive, Information Week, Jane’s Defense Weekly, Military Information Technology, Homeland Security, and Computerworld. His website is www.buxbaum1.com.

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